[1969-1982] NLR (B) 96

IN THE SUPREME COURT OF NAURU

Land Appeal. No. 13 of 1973

John Demaure

v.

Adumo and Others

11th May, 1973.

Estate of deceased intestate Nauruan - adopted child - adoption terminated by surviving spouse five years after death of deceased - rights of child in respect of estate of deceased not affected by the termination.

Estate of deceased intestate Nauruan - adopted child - child from outside family of adoptive parents - rights of succession to estates of adoptive parents - same as rights of child adopted from within family of adoptive parents.

J. was adopted as a baby by T. and S. in about 1930. Afterwards T. and S. separated. J. remained with S. effectively until her death in 1942. S. died intestate without natural issue. After her death J. lived for several periods with T. In 1947 T. informed the Council of Chiefs that he was terminating his adoption of J. S.'s estate was not fully distributed. In 1973 the Nauru Lands Committee decided that the remaining part of it should pass to the children of S.'s sister. Its reasons for its decisions were, first, that J.'s adoption had been terminated in 1947 and, second, that, even if it had not been terminated, he would have had no right to succeed to S.'s estate because he was adopted from outside the family.

Held: (1) The time at which the relationship of J. to S. was relevant was the time of S.'s death. Her estate should have been distributed immediately thereafter; if that had been done, there would have been no dispute about J. being her adopted son. He must not be prejudiced by the delay of 31 years in dealing with part of her estate.

(2) The rights of adopted children to succeed to the estates of their adoptive parents on intestacy are the same whether they were adopted from within the family or from outside it.

K.R. Adeang for the appellant
B. Dowiyogo for the respondents

Thompson C.J.:

This appeal relates to the lands comprising the balance of the estate of the late Salome the succession to which has not been previously determined. Salome died in 1942. The Nauru Lands Committee published its determination as to the succession in Gazette No. 5 of 1973 (G.N. No. 22/73). It decided that the respondents, as the issue of Salome's two sisters, should share the estate.

The appellant claims to be entitled to the whole of the estate as the adopted son of Salome. The respondents deny that he is so entitled, although they do not seek to suggest that he was not brought up from infancy by Salome. Their case is that, if he was adopted, it was a joint adoption by Salome and her husband Tsiode and that five years after Salome's death Tsiode renounced the adoption, with the agreement of the appellant. It has also been suggested that the appellant cannot succeed to Salome's estate even if was adopted by her because he did not belong to her family before his adoption.

Many of the facts in this appeal are not in dispute. Tsiode was married to Salome. However, while she remained within the homestead in a different house, he cohabited with her sister and had two children (who are two of the respondents in this appeal) by that sister. Although Tsiode may have been living with Salome at the time when the appellant was brought there, from a very early date he lived with Salome alone and was brought up by her alone until, when he was six or seven, she had to go and stay in the leper station as a patient. The appellant then went to live with a first cousin of Salome named Dobouru. Salome died shortly before the Japanese occupation of Nauru. The appellant was in the first group of Nauruans taken away to Truk by the Japanese; so was Tsiode but not Dubouru. In Truk the appellant, who was then about 10-12 years old, lived with and was cared for by Tsiode until he became ill; he then went to stay with his natural mother's sister. After he had recovered and returned to Nauru in 1946, he lived again with Tsiode; but late in 1947 Tsiode told the Council of Chiefs that he wanted his relationship with the appellant of adoptive father and adopted son to be terminated. The sister of the appellant's natural mother agreed to be responsible for the appellant. He then ceased to live with Tsiode.

There can be little doubt, from the statement made by Tsiode to the Council of Chiefs in 1947 (a record of which still exists) and from the evidence of witnesses called by the appellant, that the appellant was adopted as a baby by Tsiode and Salome. After Tsiode left Salome she alone brought him up until she went into the leper station. She kept his savings passbook, given by his natural mother. While she was in the leper station the appellant used to visit her. It is clear that the only reason for his ceasing to live with her was her having to stay in the leper station. Her adoption of him had not come to an end. When she died he was her adopted son.

The Nauru Lands Committee apparently accepted the respondents' argument that the termination of the adoptive relationship between Tsiode and the appellant in 1947 terminated the rights of the appellant as Salome's adopted son. The Committee looked to see whether a relationship was existing today which would entitle the appellant to succeed to Salome's estate. That was not the correct way to ascertain the appellant's rights; the identity and rights of beneficiaries of a person's estate must be ascertained by reference to the facts existing at the time of that person's death. It is not permissible - indeed, it could in some cases cause the most serious injustice - to wait for a number of years and then decide the matter by reference to facts existing then. In this case, subject to the question whether his having belonged originally to another family affected his rights, the appellant would have been entitled at the time of Salome's death to succeed to the whole of her estate as her child, if its distribution had been decided then as it should have been and if there had been no agreement to the contrary between himself and other members of the family. His succession would have been subject only to Tsiode, Salome's husband, having a life interest in her lands. He cannot be deprived of any right which he had when Salome died to succeed to her estate merely because subsequently he quarrelled with Tsiode long after Salome's death and Tsiode terminated the adoptive relationship between the two of them. To deprive him of such a right would be most unreasonable and unfair; it is not suggested that to Salome he acted otherwise than in a properly filial manner throughout or that Salome wished to terminate her relationship with him.

Unless there is any rule of Nauruan custom, that a child adopted from outside his adoptive parents' family cannot succeed to the estates of his adoptive parents on their intestacy, the appellant acquired a right on Salome's death in 1942, to succeed to the whole of her estate in default of a family agreement, i.e. unless the other members of the family and himself agreed to the contrary. It is not disputed that the appellant has received part of the estate of his natural mother's family. But that was because the members of her family agreed to his doing so; he did not receive it as her child in default of a family agreement.

This Court will not lightly decide that the nature of any Nauruan custom is not as the Nauru Lands Committee, with its wealth of experience of Nauruan custom, considers it to be. But that adoption was recognised as something more than temporary care of another person's child implies an effect on status and rights of the adopted child. It is difficult to envisage, in the circumstances of Nauruan society before the war, that adoption did not affect the child's rights of inheritance. The members of the Committee who have given evidence in these proceedings have been unable to cite even one example of a child adopted from outside the adoptive parents' family being treated differently from children adopted from within the family.

Having heard all the evidence and taken into account all matters which it is proper to take into account, I cannot accepted as correct the Committee's view that children adopted from outside the adoptive parents' families do not have the same rights of inheritance as natural children. I am satisfied that any child properly adopted by Nauruan custom had all the rights of a natural child of his adoptive parents. No doubt an adoption could be terminated but, in respect of any adoptive parent, only before that adoptive parent's death.

I find, therefore, that the appellant became entitled on Salome's death to succeed to the whole of her estate on her intestacy, if there was no family agreement. There was no family agreement. He, therefore, is entitled to succeed to the whole of Salome's estate not previously determined.

The appeal is allowed. In respect of every portion, or share of a portion of land specified in the Nauru Lands Committee's determination as forming part of Salome's estate the appellant is to be substituted as the sole owner in place of the respondents.